Cable TV pioneer Bill Daniels filed suit yesterday to have the retransmission consent/must-carry provision of the new cable law declared unconstitutional.

Daniels’ suit is similar to a suit filed last week by Turner Broadcasting System immediately after Congress overrode President Bush’s cable bill veto (Daily Variety, Oct. 7).

However, the Daniels action comes from the perspective of a cable system operator; Turner’s suit represented the view of the cable network programmer.

Daniels’ suit was filed on behalf of Daniels Cablevision Inc., a wholly owned cable system serving 50,000 subscribers in the San Diego suburb of Carlsbad. The suit claims that retransmission and must-carry are “unconstitutional on their face.”

Further, the suit claims, the provisions constitute “content-based, speech-restrictive and speaker-preference regulation of the cable television press … and abridge Daniels’ guaranteed freedoms under the … First Amendment.”

The suit was filed in federal district court in D.C., where a three-judge panel will decide the case. The case will then automatically be sent to the Supreme Court for review.

Under the new law, broadcasters and cable operators are required every three years to negotiate cable carriage rights to local broadcast signals.

Broadcasters may opt for simple must-carry, which would ensure cable’s continued carriage of their signal, or they may opt for retrans, which could result in cable operators paying for the right to carry the broadcast signal. The courts have twice ruled that must-carry regulations adopted by the Federal Communications Commission are unconstitutional. However, backers of the provision believe must-carry now may be on safer legal ground since Congress has thrown its support behind the concept.

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